First Tier Tribunal Submissions

FACTSHEET No. F46

This factsheet is intended for use by advice workers but may be useful to anyone appealing against a benefit decision.

1. Introduction

A submission is a statement to the tribunal. An appellant’s representative can make a submission in writing, orally or by a combination of the two.

Sending a written submission to the tribunal before the hearing can be very useful. The tribunal will read it, together with other papers associated with the appeal, before the hearing. This can result in:

a quicker hearing; your main arguments have been made and the tribunal need only investigate the detail;

a shorter oral submission; perhaps just directing the tribunal to the main points in the written submission;

you gaining a better understanding of the appeal through the writing process;

a more accurate record of your arguments for the tribunal when they adjourn to make their decision.

It is a good idea to make a written submission wherever possible.

2. The form of the submission

A written submission need not be in any particular form. A detailed letter or appeal form can function as a submission. Alternatively, a submission can be an independent document.

The length of the submission will depend on the complexity of the appeal. Paragraphs and pages should be numbered to allow the tribunal to easily refer to specific points that that the submission raises.

At the end of This Disability Alliance factsheet is a sample structure for a submission.

3. The content of the submission

Benefit entitlement depends upon satisfying a legal test. A tribunal must decide whether the facts of the claim satisfy that test. The facts are established by examining the evidence.

As well as interpreting the benefit rules correctly, the Department for Work and Pensions must follow the correct administrative procedures. Many of these procedures are set out in law. A failure to follow the administrative law can make a benefit decision invalid.

Procedural failures can occur in decisions to remove or reduce a benefit already in payment – for instance grounds for supersession may not be properly established. Benefit can be reinstated if a decision is shown to be invalid. Your submission should point out any administrative error – but be aware that the tribunal can validate a decision by correcting a minor error.

The law

Your submission should set out the legal test or tests to be satisfied. This could be detailed quotes from an Act of Parliament, regulations and case law, or a brief summary of the test.

A submission to the tribunal is prepared on behalf of the Secretary of State for Work and Pensions. The legislation used to make the benefit decision will be reproduced in this submission; often followed by a reference to some of the relevant case law.

Decisions of the commissioner/upper tribunal judge are binding on decision makers and First-tier Tribunals. A decision made by three Commissioners/three judge panel carries more weight than that of a single Commissioner and a reported decision carries more weight than an unreported decision.

Numbering of decisions

When an appeal is first lodged with the Upper Tribunal in England and Wales it is given a reference number in the form CDLA/234/2010, where: ‘C' indicates the decision is unreported; the initials following indicate the benefit claimed (in this case disability living allowance); the first set of numbers is a specific reference for the case and 2010 is the year that the appeal was lodged. The decision will keep this reference unless it is published on the Tribunals Service website or is reported.

If a decision is thought to be of importance it is published on the Tribunals Service website. The decision then acquires a reference such as for example KS v Secretary of State for Work and Pensions (JSA) [2009] UKUT 122 (AAC)

KS v Secretary of State for Work and Pensions (JSA) are the parties to the appeal (KS is the initials of the person who claimed the benefit)

JSA indicates the benefit claimed (in this case, jobseeker's allowance)

[2009] UKUT indicates a decision published on the website in 2009 and made by the UK Upper Tribunal

122 is the reference number

(AAC) indicated that it is the Administrative Appeals Chamber.

Decisions published on the website carry no more legal weight than any other decision.

If a decision goes on to be reported, an additional reference is added. In this instance it becomes KS v Secretary of State for Work and Pensions (JSA) [2009] UKUT 122 (AAC) [2010] AACR 3. The reference [2010] AACR 3 indicates it was the third decision reported in the Administrative Appeals Chamber Reports of 2010. The first time the decision is referred to it should be cited in full. Thereafter, abbreviations for the parties and benefit can be used, eg KS v SSWP (JSA).

Accessing the law

Summaries of the benefit tests can be found in Disability Alliance’s Disability Rights Handbook (DRH) or Child Poverty Action Group’s Welfare Benefits and Tax Credits Handbook (WBTCH). DRH contains references to the relevant law in the text or as notes at the end of a paragraph. WBTCH has numbered legal notes in the text that are explained at the end of the chapter.

The legal publishers Sweet & Maxwell reproduce social security legislation in four volumes entitled:

Administration, Adjudication and the European Dimension;

Non Means Tested Benefits;

Income Support, Jobseeker’s Allowance, Pension Credit and the Social Fund;

Tax Credits, Child Trust Funds and Employer-paid Social Security Benefits.

The Child Poverty Action Group produces CPAG’s Housing Benefit and Council Tax Benefit Legislation. These books reproduce benefit legislation with extensive notes on relevant case law. They are fully updated each April, with an updating supplement issued each October. The books are used by tribunals and are often referred to during a hearing.

Some websites can help you find legislation and case law. Benefit law and reported decisions of the Social Security Commissioner/Upper tribunal can be found at:

www.dwp.gov.uk/commdecs/index.asp.

Selected unreported decisions of the Social Security Commissioner/upper tribunal are at: www.osscsc.gov.uk.

Decisions of the higher courts are at: www.bailii.org.

Summaries of useful case law and a factsheet to help you find legislation and case law (Factsheet F24 - finding the law) can be found at http://www.cara-online.org/welfaredisabilityandbenefitsfactsheets.html

The facts

The facts of each claim are established by evidence. Copies of all evidence used to make the decision under appeal should be in the submission from the Secretary of State. Additional evidence can be provided at any time before the hearing, either by you or your client. Last-minute evidence may result in postponement or adjournment.

Your submission should discuss the evidence. Say which evidence supports your client’s case. Point out where supporting evidence from more than one source agrees on the facts.

If evidence does not support the appeal, can you cast doubt on its accuracy? For instance:

does a medical report fail to record a diagnosis, medication or treatment?

is the source of the evidence reliable?

is the evidence consistent throughout, or does it contradict itself?

is the evidence contradicted by evidence from another source?

is the person who drafted the evidence suitably qualified to comment?

did the person drafting the evidence have access to all the information they needed?

What the appellant tells the tribunal is evidence. What the appellant (or anyone else) tells you is evidence if you pass on this information to the tribunal. The most effective way for you to pass on information is to write it down and send it to the tribunal - some submissions consist almost entirely of a summary of the appellant’s version of events.

4. Setting out your arguments

It is difficult to specify how a case should be presented; the arguments you must make often suggest their own layout. For instance, arguments against a refusal of a disability living allowance could follow any of the following structures:

Example 1: An argument for each rate of each component and an invitation to the tribunal to make the award they think most appropriate.

Example 2: An explanation of why the evidence points to one award only (e.g. an indefinite award of the middle rate of the care component) and arguments in support of that award.

Example 3: An explanation of how your preferred evidence shows that the need for attention and supervision, problems with cooking, walking difficulties and guidance or supervision out of doors, meet the legal requirements for an award to be made. An analysis of the conflicting evidence that shows it is less reliable than your preferred evidence. An invitation to the tribunal to make the award that your preferred evidence suggests. An explanation of why a five-year award is appropriate.

Try to choose a structure that presents the case in a way that is easy to follow and sets out the arguments in a clear and logical way.

5. Conclusion

Whatever structure you choose, your submission should cover both the legal test and how the appellant satisfies that test.

An example of a possible structure for a submission is set out at the end of this factsheet.

6. More information

You can get help and information at your local advice centre, such as CARA or a Citizens Advice Bureau.

You can also get more information about the benefits mentioned on our website at www.cara-online.org. Much of this information is contained in factsheets available at www.cara-online.org.

You can also obtain copies of these factsheets/publications by contacting CARA, 18 - 22 Ashwin Street, Dalston, Hackney, London E8 3DL United Kingdom - Tel: +44 (0) 844 478 0015 -Mob: +44 (0) 795 695 2645 -Fax: +44 (0) 872 115 8436 -Email: info@cara-online.org

Appendix: SUBMISSION TO THE APPEAL TRIBUNAL

Name:

Address:

Date of birth:

NINO:

Benefit claimed:

Appeal reference:

Appeal venue:

Hearing date:

1. Introduction

1.1 The decision you want the tribunal to make.

1.2 Brief history of claim so far (dates of claim, revision, lodging of appeal, etc).

1.3 Outline of appellant’s circumstances.

2. The legal test

2.1 Summary of the legal test that the appellant must satisfy, perhaps quoting the relevant law.

2.2 Summary of how the test should work in practice, perhaps with references to relevant case law.

3. The facts

3.1 The appellant’s version of the facts.

4. The evidence

4.1 Discussion of the evidence that supports the appellant’s version of the facts.

4.2 Reasons why conflicting evidence should not be relied upon.

5. Conclusion

5.1 Summary of why your suggested decision is the correct one.

Updated 18 April 2011